Hernandez v. Aranas

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 Case No.: 2:18-cv-000102-JAD-BNW 4 Omar Hernandez,

5 Plaintiff Order Dismissing Claims against Romeo Aranas, Leeks, and Gregory Cox under 6 v. FRCP 4(m)

7 M.D. Romeo Aranas, et al.,

8 Defendants

10 On December 2, 2020, the Court notified plaintiff that its claims against Romeo Aranas, 11 Leeks, and Gregory Cox would be dismissed under Federal Rule of Civil Procedure 4(m) for 12 failure to serve these defendants if prompt action were not taken. That notice advised, “this 13 action may be dismissed without prejudice as to [these defendants] unless proof of service is 14 filed with the clerk by 01/01/2021. Service on the party must have taken place prior to the 15 expiration of the time limit set forth in Fed. R. Civ. P. 4(m), or good cause must be shown as to 16 why such service was not made in that period. Failure to comply with this notice may result in 17 dismissal of the action without prejudice as to said parties.”1 That deadline passed without 18 notice of service. 19 FRCP 4(m) requires service of the summons and complaint to be completed within 90 20 days of the complaint’s filing, and “[i]f a defendant is not served within 90 days after the 21 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 22 the action without prejudice against that defendant or order that service be made within a 23

1 ECF No. 65. 1 specified time.”2 Rule 4(c)(1) further makes it clear that “[t]he plaintiff is responsible for having 2 the summons and complaint served within the time allowed under Rule 4(m).”3 3 District courts have the inherent power to control their dockets and “[i]n the exercise of 4 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.4 A 5 court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a

6 court order, or failure to comply with local rules.5 In determining whether to dismiss an action 7 on one of these grounds, the court must consider: (1) the public’s interest in expeditious 8 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 9 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 10 availability of less drastic alternatives.6 11 The first two factors, the public’s interest in expeditiously resolving this litigation and the 12 court’s interest in managing its docket, weigh in favor of dismissal of the plaintiff’s claims. The 13 third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a 14 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading

15 ordered by the court or prosecuting an action.7 A court’s warning to a party that its failure to 16

2 Fed. R. Civ. Proc. 4(m). 17 3 Fed. R. Civ. Proc. 4(c). 18 4 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 19 5 See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to 20 comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440– 41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to 21 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 22 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 6 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130; 23 Ferdik, 963 F.2d at 1260–61; Ghazali, 46 F.3d at 53. 7 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 1}| obey the court’s order will result in dismissal satisfies the fifth factor’s “consideration of 2|| alternatives” requirement.® And that warning was given here.’ The fourth factor—the public policy favoring disposition of cases on their merits—is greatly outweighed by the factors favoring dismissal. 5 Because plaintiff has not demonstrated that process has been served on these defendants within the time prescribed by FRCP 4(m), IT IS THEREFORE ORDERED that the claims against Romeo Aranas, Leeks, and Gregory Cox are DISMISSED without prejudice under 8]| FRCP 4(m). 9 Dated: March 3, 2021 Cn USS. District Jud nnifer\A. Dorsey 1] 12 13 14 15 16 17 18 19 20 21 22 23||° Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. ECF No. 65.